Rajasthan High Court - Jodhpur
Asha Ram vs Pushkarna Brahmin Bhimji Ka Mohala And ... on 11 March, 2024
Author: Rekha Borana
Bench: Rekha Borana
[2024:RJ-JD:12060]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Misc. Application No. 82/2016
Asha Ram
----Petitioner
Versus
Pushkarna Brahmin Bhimji Ka Mohala and Anr.
----Respondents
For Petitioner(s) : Mr. Muktesh Maheshwari
Mr. Aidan Choudhary
For Respondent(s) : Dr. RSD Rajpurohit
Mr. N.R. Choudhary
Mr. K.N. Vyas
HON'BLE MS. JUSTICE REKHA BORANA
Order Reportable 11/03/2024
1. The present application has been filed for recalling of the judgment dated 01.12.2015 passed in S.B. Civil Execution Second Appeal No.27/1994.
2. The facts in brief are as under :
(i) In year 1974, a suit for eviction was filed by respondent No.1-Pushkarna Brahmin Bhimji Ka Mohalla Vikas Samiti (hereinafter referred to as 'the Samiti') against Damodar Das and Udai Kishan being the father and the son. In the said suit, an application under Order I Rule 10 of Code of Civil Procedure (CPC) for impleadment was preferred on behalf of Asha Ram and Mool Raj, other sons of Damodar Das, with the submission that infact Damodar Das and Udai Kishan are not in possession of the property but it is they i.e. Asha Ram and Mool Raj who are in possession of the property. A submission was made that after (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (2 of 20) [CMAP-82/2016] marriage of Mool Raj in year 1975, because of some family disputes, Damodar Das and Udai Kishan separated from the family and starting living separately. Hence, the plaintiff, in collusion with Damodar Das and Udai Kishan has malafidely preferred the present suit without impleading them. In the said application, a plea of adverse possession was also raised by the applicants.
(ii) The application as preferred by the applicants was rejected vide order dated 17.07.1976 with an observation by the Court that no evidence of possession on the property by the applicants was placed on record and further that even if a decree for eviction would be passed in the present suit, the same would even otherwise not affect the applicants who claim themselves to be in independent possession.
(iii) A revision petition being S.B. Civil Revision No.393/1976 against the said order was preferred by the applicants which was disposed of vide order dated 26.10.1976 with the following observations :
"Heard learned counsel.
The grievance of the learned counsel is that while rejecting the application of the applicant for being impleaded as a party defendant in the suit, the learned trial Court has made certain observations which may affect the rights of the applicant in any subsequent proceedings. So far as the decision of the trial Court is concerned, that the rights of the applicant would not be affected by whatever decree may be passed in the present suit, there can hardly be any dispute. However, it is made clear that the observations made by the trial Court in respect of the rights of the applicant relating to the property in dispute shall not in (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (3 of 20) [CMAP-82/2016] any manner affect the rights of the applicant in any subsequent proceedings.
With these observations, the revision application is dismissed."
(iv) Meanwhile, the suit as preferred by the Samiti was decreed ex parte vide judgment and decree dated 29.07.1976.
(v) An application under Order IX Rule 13, CPC was then preferred by defendant Damodar Das for recalling the ex parte decree dated 29.07.1976 on the ground that the summons in the suit were never served upon him. The application under Order 9 Rule 13, CPC as preferred by Damodar Das was allowed and ex parte decree dated 29.07.1976 was set aside vide order dated 29.08.1981. As a consequence, the suit for eviction was restored and the trial of the same commenced again.
(vi) However, before the ex parte decree dated 29.07.1976 been set aside, the execution proceedings in pursuance to decree dated 29.07.1976 had already been initiated by the decree holder (Execution Case No.62/1977). In the said execution proceedings, when resistance was made by Asha Ram and Mool Raj and obstructions were raised by them in possession being obtained by the decree holder-Samiti, an application under Order XXI Rule 97, CPC was preferred by the decree holder. The applications dated 11.10.1977 & 14.10.1977 were also preferred for providing the police aid in getting the possession of the property.
(vii) The application under Order XXI Rule 97, CPC as preferred by the decree holder was rejected by the Executing Court vide order dated 09.12.1978 keeping into consideration, the order passed in the revision petition wherein it was observed that the (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (4 of 20) [CMAP-82/2016] decree of eviction, if any, would not affect the rights of the applicants i.e. Asha Ram and Mool Raj.
(viii) Execution First Appeal No.46/1993 (07/1979) was preferred by the decree holder against the order dated 09.12.1978 and the same remained pending till the year 1993.
(ix) Meanwhile as referred above, the decree dated 29.07.1976 was set aside vide order dated 29.08.1981. But despite the said decree having been set aside, the decree holder pursued the execution first appeal which was dismissed on 28.08.1993.
(x) Aggrieved against the order dated 28.08.1993, Execution Second Appeal No.27/1994 was preferred by the decree holder which was ultimately allowed vide judgment dated 01.12.2015. Vide the said judgment, it was held that the eviction decree dated 29.07.1976 deserves to be executed against all the respondents/objectors. The defendants/tenants were directed to handover the peaceful and vacant possession of the property in question to the appellant-plaintiff Samiti within a period of six months i.e. on or before 30.06.2016 and further to pay mesne profit at the rate as directed.
(xi) A Special Leave to Appeal against the judgment dated 01.12.2015 was filed by objector Asha Ram before the Hon'ble Apex Court, which was dismissed in limine on 13.05.2016.
(xii) As submitted on record, possession of the part of rented premises was even taken by the landlord.
(xiii) Meanwhile, the suit proceedings after re-commencement, again proceeded ex-parte against the defendants and the suit was ultimately decreed ex-parte vide judgment and decree dated 30.09.1982.
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3. The present application has now been preferred on behalf of objector Asha Ram for recalling the judgment dated 01.12.2015 passed in execution second appeal on the sole ground that the said order was obtained by playing fraud upon the Court as the decree dated 29.07.1976 had already been set aside and as on 01.12.2015, no decree was in existence of which the execution was prayed for.
4. Learned counsel Mr. Muktesh Maheshwari appearing for the applicant submitted that the present is a clear case of fraud upon the Court where the decree holder was very well aware of the decree dated 29.07.1976 having been set aside and despite the same, concealing the said fact, pursued the proceedings for execution of the said decree and even succeeded in obtaining the judgment in his favour. Learned counsel submitted that when it is clear on record that the judgment dated 01.12.2015 had been obtained by fraud, the same can be set aside suo moto by this Court while exercising powers under Section 151, CPC. Learned counsel further submitted that in the peculiar facts and the circumstances of this case, even the order of rejection of SLP by the Hon'ble Apex Court would not come in the way as firstly, the SLP was dismissed in limine, meaning thereby, no leave was granted and there was no adjudication on merits and secondly, the said order was passed by the Hon'ble Apex Court in ignorance of the fact that the decree dated 29.07.1976 had already been set aside. Learned counsel submitted that the Doctrine of Merger would definitely not apply in the present matter as the order, if obtained by fraud, would be of no consequence and cannot have a binding force. Learned counsel further submitted that the (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (6 of 20) [CMAP-82/2016] concealment and the malafides of the decree holder are evident even from the fact that after the decree dated 29.07.1976 having been set aside, the suit proceedings recommenced and the plaintiff i.e. the decree holder, even participated in the same and even got the plaintiff's evidence recorded. The said suit was again decreed on 30.09.1982 and the fact of said second decree was never disclosed by the decree holder even before this Court in the execution second appeal. Therefore, pursuing the execution of the first decree which was infact set aside, while not disclosing the passing of the second decree is clearly malafide, intentional and fraudulent. Learned counsel further submitted that the present applicant was not aware of decree dated 29.07.1976 having been set aside and it is only in the month of August 2016, when he applied for certified copies, he came to know of the said fact. Soon after that the present application has been preferred.
5. Learned counsel Mr. K.N. Vyas appearing for respondent- Mool Raj also adopted the arguments of learned counsel Mr. Muktesh Maheshwari appearing for applicant Asha Ram.
6. Learned counsel Mr. N.R. Choudhary appearing on behalf of legal representatives of Udai Kishan, while supporting the applicant, submitted that the judgment dated 01.12.2015 deserves to be recalled as the decree dated 29.07.1976 to which the execution proceedings pertained, did not even exist on that date and so far as the second decree dated 30.09.1982 is concerned, the execution of the same was never sought/prayed for.
7. Before referring to the grounds as raised by learned counsel for respondent No.1 Samiti, it is relevant to note that in the reply (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (7 of 20) [CMAP-82/2016] to the application for recalling of the judgment dated 01.12.2015 as preferred by the applicant, the sole ground raised by the respondent decree holder is that no order passed by the Court can be recalled while exercising inherent power under Section 151, CPC. When law provides for a specific remedy of review of any order, the same having not been availed by the applicant, the said relief cannot be granted in the garb of inherent power under Section 151, CPC. Further, once the judgment dated 01.12.2015 which is prayed to be recalled, has already been assailed before the Hon'ble Apex Court and the said SLP has already been rejected, the present application for recalling cannot even be considered to be maintainable as the said order has already attained finality.
In the reply, further objection regarding impleadment of the legal representatives of Udai Kishan has been raised. Meaning thereby, not a single averment so as to admit or deny the factum of decree dated 29.07.1976 having been set aside, has been made.
8. Although in the reply, only two above grounds have been pleaded/averred but during the course of the arguments, learned counsel Dr. RSD Rajpurohit appearing for respondent No.1 decree holder Samiti submitted as under :
(i) If the statute provides for specific provisions for review of any order, an application for recalling under Section 151, CPC neither can be entertained nor can be said to be maintainable.
(ii) An application for recalling, even if is to be maintained, can be entertained only in cases where the party praying for such (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (8 of 20) [CMAP-82/2016] recalling was unheard or no opportunity of hearing was granted to it.
(iii) Even if the present application is termed to be a review application, the same is also not maintainable as there is no error of law apparent on the face of the record which deserves interference.
(iv) Even if the order dated 29.08.1981 whereby the decree dated 29.07.1976 was set aside, is to be taken into consideration, the same is ipso facto void and hence, cannot be of any consequence. It is undisputed on record that a regular First Appeal against the judgment and decree dated 29.07.1976 was also preferred by defendant Damodar Das and the same was dismissed as withdrawn. Once a regular appeal against the judgment and decree was dismissed, the decree attained finality and hence, the order/judgment dated 29.08.1981 could not even have been assailed on that date as by that date, the decree had already attained finality.
(v) As the regular First Appeal against the decree dated 29.07.1976 was dismissed, the said judgment and decree dated 29.07.1976 merged in the said order and hence, it could not have been set aside vide order dated 29.08.1981. Therefore, when the order dated 29.08.1981 was itself void, participation of plaintiff Samiti in the suit proceedings after re-initiation, would make no difference and would be of no legal consequence.
(vi) The present application is even barred by law of limitation as firstly, even if any fraud is alleged, the limitation to challenge the same expired way back in the year 1984 (3 years from the order dated 29.08.1981). Secondly, the fact that the applicant came to (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (9 of 20) [CMAP-82/2016] know about the order dated 29.08.1981 only in the year 2016, cannot be held to be true without affording any opportunity to the respondent to cross-examine the applicant on the said aspect.
9. In addition to the above arguments, learned counsel raised certain other grounds pertaining to affidavit in support of the application being not properly verified and the affidavit hence, being defective.
10. In rejoinder, learned counsel for the applicant submitted as under :
(i) Once it is proved on record that decree dated 29.07.1976 was set aside, the principle of merger would not even apply and ultimately, it is the final decree which could have been executed and not the decree which was set aside.
(ii) While relying upon the judgment rendered in the matter of Khoday Distilleries Limited (now known as Khoday India Limited) and Others Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal, (2019) 4 SCC 376, learned counsel submitted that even if the SLP had been dismissed on merits, 'doctrine of merger' would not even come into play in the present matter.
(iii) So far as maintainability of the application under Section 151, CPC is concerned, while relying upon the judgment passed in the matter of Indian Bank Vs. Satyam Fibres (India) Pvt.
Ltd., (1996) 5 SCC 550, learned counsel submitted that the present is a case totally based on fraud and gross concealment hence as laid down by the Hon'ble Apex Court, the rights under Section 151, CPC can very well be exercised by the Court in its inherent powers. Hence, no power of review is required to be (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (10 of 20) [CMAP-82/2016] exercised to interfere wherein an order has been obtained by playing fraud upon the Court.
In the alternative, learned counsel submitted that even if it is assumed that the application has been preferred under a wrong provision of law, correct provision can very well be resorted to by the Court and the applicant cannot be non-suited only for the reason of incorrect nomenclature.
(iv) So far as the limitation is concerned, the present application filed in year 2016 for recalling of order dated 01.12.2015 is very well within limitation. On the contrary, it is clear on record that the limitation for execution of the second decree dated 30.09.1982 has already expired and therefore, the complete exercise by the decree holder has been made just to circumvent the said period of limitation.
11. Learned counsel Mr. N.R. Choudhary, in rebuttal, submitted that so far as the withdrawal of the regular first appeal as preferred by the defendant Damodar Das is concerned, firstly, none of the defendant/applicants were aware of the said fact and further, if the decree holder was aware of the said fact, it could have been brought on record by him before the learned trial Court while it was seized of the application under Order 9 Rule 13, CPC as preferred by Damodar Das. Further, despite the decree holder being aware of the said fact, after the application under Order 9 Rule 13, CPC having been allowed and the decree dated 29.07.1976 having been set aside, he even participated in the proceedings when recommenced. Meaning thereby, the decree holder, with open eyes, participated in the suit proceedings after re-initiation and did not object to the same at any point of time. (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (11 of 20) [CMAP-82/2016] Therefore, the ground of order dated 29.08.1981 being void, cannot be permitted to be raised at behest of the decree holder at this stage.
12. Learned counsel Mr. K.N. Vyas also, in rebuttal, submitted that Jhabarmal, the alleged Potedar of plaintiff Samiti was pursuing all the proceedings and even the same counsel was representing the plaintiff Samiti in all the proceedings. Therefore, it cannot be alleged that the plaintiff Samiti was not aware of the fact that the regular appeal as preferred by defendant Damodar Das against the judgment and decree dated 29.07.1976 was dismissed as withdrawn. Hence, the ground of order dated 29.08.1981 being void cannot be permitted to be raised at this stage.
13. Learned counsel Dr. RSD Rajpurohit appearing for respondent no.1 decree holder however, while concluding his arguments, submitted that infact the decree holder was not aware of the order dated 29.08.1981 whereby the decree dated 29.07.1976 was set aside.
14. Heard learned counsels and perused the material available on record.
15. Although many grounds have been raised by learned counsel for respondent No.1 before this Court during the course of arguments, this Court would limit itself to the pleadings/grounds made/raised in the reply to the application. Further, keeping into consideration the fact that the present is an application with a prayer to recall the order/judgment dated 01.12.2015, this Court would refrain itself from entering into the merits of the subject (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (12 of 20) [CMAP-82/2016] matter and hence, the following issues arise for consideration of this Court :
(i) Whether this Court, while exercising the powers under Section 151, CPC can recall the order/judgment dated 01.12.2015 ?
(ii) Whether the order/judgment dated 01.12.2015 can be recalled by this Court despite a Special Leave to Petition against the same having been dismissed by the Hon'ble Apex Court, that is to say, whether the 'principle of finality' would apply to the present matter ?
16. Before venturing into the above issues, this Court is first required to reach to a finding as to whether a fraud has been acted upon the Court or not ?
It is not disputed on record that the decree dated 29.07.1976 was set aside on 29.08.1981 while allowing the application under Order 9 Rule 13, CPC as preferred by defendant Damodar Das. It is also not disputed on record that after the said decree having been set aside, the suit proceedings recommenced and the plaintiff participated in the said proceedings with all rigour. Even the plaintiff evidence was recorded after the re- initiation of the suit proceedings. Meaning thereby, the plaintiff was very well aware of the decree dated 29.07.1976 having been set aside, therefore, the feeble argument raised on behalf of the plaintiff-respondent No.1 that he was not aware of the order dated 29.08.1981, turns out to be a total incorrect statement on the face of it.
Further, the reply to the application as preferred by the plaintiff is completely silent on this aspect. There is not a single whisper in the complete reply either denying the fact of the decree (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (13 of 20) [CMAP-82/2016] dated 29.07.1976 having been set aside or averring the fact that the plaintiff was not aware of the same. In the complete reply, only the grounds relating to the maintainability of the present application and jurisdiction of the Court to entertain such application have been raised and not a single averment to deny the facts as pleaded by the applicant has been made.
17. It is the basic and the settled proposition of law that a denial has to be specific. Order VIII Rule 5(1), CPC provides as under :
"5. Specific denial.--(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission:
Provided further that every allegation of fact in the plaint, if not denied in the manner provided under Rule 3A of this Order, shall be taken to be admitted except as against a person under disability."
Hon'ble Supreme Court in the case of Badat and Co. Bombay Vs. East India Trading Co., AIR 1964 SC 538 held that if denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. The said ratio has again been reiterated by the Hon'ble Supreme Court in the recent case of Thangam and Another Vs. Navamani Ammal, Civil Appeal No.8935/2011 (decided on 04.03.2024).
18. So far as the present matter is concerned, it is clear on record that the plaintiff respondent No.1 has not, in any manner even evasive or non-specific, denied the fact of the decree dated 29.07.1976 having been set aside. The same, in terms of the clear provision of law, would definitely amount to an admission. This (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (14 of 20) [CMAP-82/2016] Court finds no reason to conclude anything other than the fact that the plaintiff was very well aware of the decree dated 29.07.1976 having been set aside but still, while concealing the said fact, continued to pursue the Execution First Appeal No.46/1993 and further, after dismissal of the same, preferred the Execution Second Appeal No.27/1994 before this Court.
19. It is also clear on record that the execution second appeal which was filed before this Court in year 1993/94, was admittedly filed after the order dated 29.08.1981 having been passed. But still the said fact was neither pleaded in the appeal nor was averred before the Court ever. The order/judgment dated 01.12.2015 was clearly passed in ignorance of the order dated 29.08.1981 having been passed and the decree in question, of which the execution was sought, having already been set aside. It is therefore, crystal clear on record that the order/judgment dated 01.12.2015 was passed in ignorance of the order dated 29.08.1981 as the same was malafidely concealed by the plaintiff, the decree holder. As held by the Hon'ble Supreme Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs Jagannath (dead) by L.Rs. and Others, AIR 1994 SC 853, a litigant who approaches the Court, is bound to produce all the documents which are relevant to the litigation. If he withholds a vital document in order to gain advantage over the other side, he would be guilty of playing fraud on the Court as well as on the opposite party. In the said matter, the Court further held that a person whose case is based on falsehood, has no right to approach the Court and he can be summarily thrown out at any (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (15 of 20) [CMAP-82/2016] stage of the litigation. The Hon'ble Apex Court therein also observed as under :
"The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage."
20. Testing on the touch stone of the ratio as laid down by the Hon'ble Apex Court, this Court is of the clear opinion that the plaintiff malafidely concealed from this Court, the fact of the decree dated 29.07.1976 having already been set aside which amounts to deliberate deception in order to obtain the judgment in his favour. The same is clearly a fraud upon the Court as the plaintiff has vide order/judgment dated 01.12.2015, dishonestly obtained an order of execution of a decree, which did not even exist on that date.
21. Once this Court has reached to a conclusion that the plaintiff played fraud upon the Court, the issue now would be whether the order obtained by the plaintiff by playing a fraud can be recalled by this Court in exercise of powers under Section 151, CPC ? Reliance on the Hon'ble Apex Court judgments in the matters of Indian Bank Vs. Satyam Fibers (India) Pvt. Ltd., (1996) 5 SCC 550 and A.V. Papayya Sastry and Others Vs. Govt. of A.P. and Others, (2007) 4 SCC 221 would be apt to conclude on the said issue.
22. In Indian Bank's case (supra), the Hon'ble Apex Court held as under :
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[2024:RJ-JD:12060] (16 of 20) [CMAP-82/2016] "21. In Smith v. East, Elloe Rural District Council , the House of Lords held that the effect of fraud would normally be to vitiate any act or order. In another case, Lazarus Estate Ltd. v. Beasley (QB at p.702), Denning, L.J. said :
"No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."
22. The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent power are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the Court's business.
23. Since fraud effects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order."
23. In A.V. Papayya Sastry's case (supra), the Hon'ble Apex Court, while relying upon the ratio of the earlier judgment in the case of United India Insurance Co. Ltd. Vs. Rajendra Singh, (2000) 3 SCC 581, observed that the remedy to move for recalling the order on the basis of newly-discovered facts amounting to fraud of high degree, cannot be foreclosed. The Hon'ble Apex Court in strict terms observed that, no Court or Tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (17 of 20) [CMAP-82/2016] misrepresentation of such a dimension as would affect the very basis of the claim.
24. Applying the above ratio to the present case, this Court is of the clear opinion that the order/judgment dated 01.12.2015 was obtained by the plaintiff concealing the order dated 29.08.1981. Had the factum of decree having been set aside brought on record, indisputably the order/judgment dated 01.12.2015 would not have been passed by the Court. Once this Court has reached to a conclusion that the order/judgment dated 01.12.2015 was obtained by fraud and misrepresentation, in view of the ratio as laid down by the Hon'ble Apex Court in the above judgments, this Court holds that in exercise of powers under Section 151, CPC, it is definitely within its jurisdiction to recall the order/judgment dated 01.12.2015.
25. Now the issue is - Whether after the SLP against the order/judgment dated 01.12.2015 having been dismissed by the Hon'ble Apex Court, the principle of finality/merger would apply and hence, this Court would not have the authority/jurisdiction to recall the order/judgment dated 01.12.2015 ?
26. In A.V. Papayya Sastry's case (supra), the Hon'ble Apex Court, while dealing with a specific case wherein the order had been obtained by fraud observed as under :
"26.........Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of "finality of litigation"
cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants."
27. Coming on to the issue whether doctrine of merger would apply to the present matter, it is undisputed on record that the (Downloaded on 18/03/2024 at 08:30:23 PM) [2024:RJ-JD:12060] (18 of 20) [CMAP-82/2016] SLP as preferred against the order/judgment dated 01.12.2015 was dismissed in limine. Admittedly, no leave was granted by the Hon'ble Apex Court.
The Hon'ble Apex Court in Khoday Distilleries Limited's case (supra), while dealing with aspect of the doctrine of merger observed as under :
"The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution, the Supreme Court may reverse, modify or affirm the judgment, decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of the petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter."
The Court further specifically observed that an order refusing special leave to appeal, may be a non-speaking or a speaking order, in either case, does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. It is only when once leave to appeal has been granted and appellate jurisdiction of the Supreme Court is invoked, the order passed in appeal would attract the doctrine of merger.
28. In view of the above ratio, the doctrine of merger would definitely not apply to the present matter as no leave was granted by the Hon'ble Apex Court and the rejection of the leave to appeal was in limine.
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29. Coming on to the ground as raised by learned counsel for respondent No.1 that the order dated 29.08.1981 was void as a regular appeal against the judgment and decree dated 29.07.1976 had already been preferred by defendant Damodar Das and the same was dismissed. Hence, the decree attained finality and could not have been set aside on an application under Order IX Rule 13, CPC.
The above ground would not retain this Court much as the position of law is very clear and settled on the point. It is the settled proposition of law that filing of an application under Order IX Rule 13, CPC as well as filing of an appeal under Section 96(2), CPC against the ex parte decree are concurrent remedies available to a defendant. It is only if the appeal preferred by the defendant against the ex parte decree is dismissed except by withdrawal, that the remedy under Order IX Rule 13, CPC cannot be pursued. Admittedly, the regular appeal as preferred by the defendant was dismissed as withdrawn and hence, it cannot be concluded that the remedy under Order IX Rule 13, CPC could not have been pursued by the defendant. The said proposition of law has been reiterated by the Hon'ble Apex Court in G.N.R. Babu @ S.N. Babu Vs. Dr. B.C. Muthappa & Ors., 2022 INSC 931 and further in the Koushik Mutually Aided Cooperative Housing Society Vs. Ameena Begum & Another, 2023 INSC 1065.
In view of the above settled position of law, the ground as raised by learned counsel for the respondent No.1 cannot said to be tenable.
30. What can be concluded/summed up from the complete analysis is as under :
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(i) Firstly, the order/judgment dated 01.12.2015 was obtained by the plaintiff respondent No.1 by playing fraud upon the Court in so far as the fact of the decree dated 29.07.1976, of which the execution was prayed for, had already been set aside on 29.08.1981 and as on 01.12.2015, decree even did not exist/survive. Even no appeal against the order dated 29.08.1981 is reported to have been filed or to be pending.
(ii) Secondly, this Court, after reaching to the conclusion that the order/judgment dated 01.12.2015 was obtained by fraud, definitely has the jurisdiction to recall the said order while exercising powers under Section 151, CPC.
(iii) Thirdly, the doctrine of merger would not apply to the present matter as no leave to appeal was granted by the Hon'ble Apex Court against the order/judgment dated 01.12.2015 and the SLP was dismissed in limine.
(iv) Fourthly, the principle of "finality of litigation" would also not apply as the regular first appeal preferred by the defendant was withdrawn and not decided on merits.
31. In view of the above conclusions and specific findings as arrived to, and in view of the ratio laid down by the Hon'ble Apex Court in the judgments as discussed in the preceding paras, the present application is allowed. The order/judgment dated 01.12.2015 is hereby recalled. Let S.B. Civil Execution Second Appeal No.27/1994 be restored and be listed for hearing.
(REKHA BORANA),J 644-Vij/-
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